Page:North Dakota Reports (vol. 48).pdf/189

 It seems to me that the whole tenor of the instruction was derogatory to the testimony of these engineers, and must have had a tendency to discredit it before the jury.

, J. (dissenting). This action is one to recover damages in the sum of $3,000, with interest at 6 per cent, from August 24, 1918, on account of the flooding of a certain basement, by a certain rainstorm which occurred at Dickinson, N. D., August 21, 1918. Such flooding, it is claimed, was caused by the blocking or obstruction of a certain channel of drainage, in the city of Dickinson, by a certain embankment of earth, which crosses the channel, upon which embankment the railway is constructed. Through the embankment, over and across the channel. there is no outlet, excepting a small iron culvert. In short, it is claimed that the embankment across the channel completely blocks it, with the exception of the small culvert. The opening or diameter of the culvert: is claimed to be about 4 feet.

Damage in the sum of $100 is claimed for removing water from the basement; $150 for damage to certain furniture, damage for the loss of rental value of the basement to the extent of $50 per month, from August 24, 1918, to the date of bringing the action, aggregating $825, and damage to plaintiff’s stock of merchandise in the sum of $2,100.

Defendant, after admitting the appointment of McAdoo and his successsor, Hines, as Director General of Railroads, enters a general denial to the allegations of the complaint. The defendant further alleges that the damage and injury suffered by the plaintiff were occasioned and caused by an unusual and extraordinary rainstorm and flood, which occurred in the city of Dickinson and vicinity on or about the 21st day of August, 1918, and that said damage was in no manner caused through any negligence on the part of defendant.

The case was tried to the court and a jury at Dickinson. The verdict was in favor of the plaintiff for $2,554.24, including costs and interest, and judgment was entered for that amount. The issues of fact were submitted to the jury generally, except special questions were as well submitted. The special questions, which are material for consideration here, and which the defendant has in its brief set forth, are as follows:

Question 1: Was the rainstorm of August 21, 1918, involved in this action, an unusual and extraordinary rainstorm? Answer: Yes.

Question 2: Was the 4-foot cast iron culvert maintained by the de-